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A Fragile Peace for Catholic Education

Across the country this month, many Americans celebrated “wins” for Catholic schools and religious freedom at the Supreme Court—and rightly so. But it would be a mistake to believe that Catholic education is secure without substantial fortification.

In fact, the Catholic identity of our schools and colleges may be in far greater danger than it was before the summer began. There is much that Catholic educators can do to improve their prospects for the future, but it will require strong faith and fortitude.

This Court session proved that the Religion Clauses of the First Amendment still offer some cover for faithful education. But thanks in part to the Supreme Court’s Bostock v. Clayton County, Georgia ruling issued in June—finding that employers may not discriminate based on homosexual or transgender status or behavior—Catholic educators must be prepared for the impact of secular and ideological devastation in the surrounding culture. The pressure on Catholic schools and colleges to compromise the Faith will be intense.

Moreover, any legal protection for Catholic education provided by this Court must be considered within the broader context of the Bostock ruling and how it impacts state laws, accreditation and membership in athletic associations. Some attorneys express optimism that
Catholic schools and colleges will win even greater protections under federal law following Bostock. It’s just as likely that our refuge, such as it is, may be temporary.

Regardless, Catholics must use every opportunity we still have to prepare the next generation for a renewal of fidelity and of American culture. And to do that, we must provide faithful Catholic education that is fully committed to the needs of Catholic families. We must give young Catholics the spiritual and intellectual formation they truly deserve, instead of courting enrollment by families whose interest in Catholic education is only to gain advantages in college and career. It would be better to have fewer schools and colleges devoted to truly Catholic education, rather than devote scarce resources to a mostly secular education that can be provided by other private, public, and charter schools.

The bottom line is that there’s no escaping the growing antagonism toward any institution that preserves a Christian understanding of the human person, sexuality, and marriage. Our legal protections are limited, and we may not have many years before Catholic schools and colleges lose the limited protections they now have. The renewal of faithful Catholic education has never been more urgent, and it would be tragic if educators choose instead to compromise away what remains of Catholic schools and colleges.

Stay faithful

Last month’s Bostock ruling expanded the scope of sex discrimination under Title VII, the federal law concerning employment, to include adverse decisions concerning transgender and homosexual behavior.

If applied to Catholic education, this would prevent schools and colleges from upholding moral standards for teachers and other employees. A Catholic school could not, for instance, fire a teacher for same-sex marriage, celebrating homosexuality in the classroom, or violating policies that demand respect for a student’s God-given sex.

Moreover, employment discrimination often turns on claims of a hostile work environment. A Catholic school that teaches the truth about human sexuality and requires teachers to uphold Catholic teaching could be in violation of federal law simply by making certain employees uncomfortable about expressing a homosexual or transgender identity.

In the Bostock ruling, the Supreme Court did not make distinctions between “sexual identity” and behavior. This means that discrimination lawsuits could arise not only because a Catholic school or college forbids same-sex marriage, but also if it prevents an employee from displaying inappropriate sexual behavior or advocating it among students. A double standard could quickly emerge in the enforcement of student rules concerning chastity, acceptable language, and dress code—rules that might not be permitted for teachers and other employees.

What about athletics, locker rooms and bathrooms, and other student facilities and activities impacted by gender ideology? Formally, Title VII and the Bostock ruling govern only employment decisions. However, Title IX—the federal law on sex discrimination in schools and colleges that accept federal funds—is usually interpreted the same as Title VII. This could reach into Catholic school and college athletics and even the classroom, while indirectly influencing accreditation, athletic associations and state licensing for schools and colleges.

All of this is, of course, simply unacceptable. Even more, it’s impossible, because the mission of Catholic education begins with fidelity to the Catholic faith. All of its teaching, activities and policies must be faithful to Catholic teaching. And its employees must be witnesses to the faith and moral behavior.

An authentic Catholic school or college can’t conform to Bostock. There is no compromise with Bostock that does not scandalize students and contradict the very purpose of a Catholic school or college to teach truth and form saints.

Limited protection

The big question to be litigated, then, is whether Catholic education is protected by the religious exemptions written into Title VII and Title IX, so that neither law can be enforced against Catholic schools and colleges—and whether Congress allows those exemptions to survive. Past
interpretations of the Title VII religious exemption have been quite narrow, but the opinions in Bostock suggest that a wider interpretation might be possible. We’ll have to fight for it.

The even bigger question is whether Catholic educators will vigorously assert their rights to religious freedom or instead yield to gender ideology, prioritizing public affection over their fidelity to Catholic teaching. Sadly, as we have seen time and again, some will try to compromise.

The best thing that Catholic educators can do immediately is to batten down their Catholic identity as tightly as possible. This provides the best defense under the First Amendment, religious exemptions, and the Religious Freedom Restoration Act. Most important, it’s the right thing to do.

All of which brings us to the other Supreme Court rulings this summer. The Our Lady of Guadalupe School ruling provides Catholic education limited protection from discrimination lawsuits under the “ministerial exception,” but it seems to apply only to employees that teach religion or have explicitly religious duties. Simply claiming that every teacher is a “catechist” is probably insufficient without job descriptions, contracts, handbooks, hiring policies, employee evaluations, and actual duties that are clearly ministerial. Every employee in a Catholic school or college should be required to teach and uphold the Catholic faith by their words and deeds.

The ministerial exception does not offer the total protection for Catholic education that is often implied by commentators. If just one employee does not qualify for the ministerial exception—a maintenance worker or clerical assistant, perhaps—then the school could be vulnerable to lawsuits unless it qualifies for religious exemption from Title VII. Therefore, employee and student policies must be written in light of Bostock regardless of the ministerial exception.

This does not mean that schools and colleges should conform to gender ideology and thus betray the mission of Catholic education. It means that they should work on strengthening Catholic identity and fortifying legal defenses with policies that are clearly tied to their mission. They
should be prepared to fight Bostock in court, if necessary.

Meanwhile, the Court’s Espinoza ruling this month prevents states from excluding Catholic schools and colleges from public benefits that are available to private education. This has been celebrated as an opportunity for school choice programs and taxpayer funding for Catholic education. I have been a lifelong advocate for school choice—the principle that public funds for education should follow each student to the school or homeschool chosen by their parents—but a sudden flood of money with strings attached can be highly dangerous to religious institutions.

Given the direction of nondiscrimination law under Bostock, we can expect growing conflicts with Catholic teaching and religious freedom in both federal and state law. Educators must therefore place priority on protecting Catholic education against entanglements that compromise the mission of Catholic education. This could require great sacrifice. The Espinoza ruling is a hollow victory if families are unable to choose faithful schools.

Finally, the Supreme Court’s Little Sisters of the Poor ruling dispels any claim by Catholic schools or colleges that they must conform to the federal contraceptive mandate. Will those Catholic universities that currently provide health insurance covering birth control and, in some cases, abortion change course? It’s doubtful. The impact of the ruling for these universities may only be to emphasize the hypocrisy of their practices, whereas it affirms the determination of those schools and colleges that admirably refused to comply with the Obama-era mandate.

Path forward

If Catholic school and college leaders firmly stand their ground, strengthen internal policies to forthrightly uphold Catholic beliefs, and defend their religious freedom in court when necessary, there is hope they can hold on within the new Bostock environment. But compromising Catholic education to conform to the Court’s false and immoral interpretation of the law will only invite scandal and demise.

Too many Catholic schools and colleges have weakened their Catholic identity over the past few decades, with disastrous results. Now, without a consistent Catholic identity across all policies and practices, why would legal courts treat them differently than their secular counterparts?

Catholic families don’t need more watered-down Catholic education. They need the opposite. Young Catholics deserve an authentic Catholic education. They need to be formed in faith and reason.

Our society has quickly adopted a distorted view of marriage and sexuality, and the response to this should be evangelization—not conformity. It would be a tragedy if Catholic schools and colleges cowered under Bostock and compromised their religious mission. Instead, more than ever we need graduates of faithful Catholic education who are prepared to transform a confused and wayward culture.

This will require Catholic educators who are prepared to defend their students’ right to a Catholic formation—and then do it well.

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